(227 P.) spondent contends that the judgment of non- The rule is well established that a motion suit should be sustained is that, since re- for a nonsuit upon the ground that the proof spondent is a Carey Act construction com- fails to establish any negligence on the part pany, and was granted, by statute, a right of of the defendant, that there is an entire way for its canals and ditches while it main- absence of sufficient proof to establish liatains its system, it has all the "incidents" bility on the part of the defendant, or that of ownership of such right of way; that the the evidence shows conclusively that the statute does not require it to fence its right plaintiff is guilty of contributory negligence, of way, and that in failing to fence the right without specifying wherein the evidence fails of way (the gulch) it violated no duty to to establish any negligence or wherein and appellant; and that it is not a case where in what particular there is an entire abit maintains a dangerous agency upon the sence of sufficient proof to establish liabilland of another, but is one that it maintains ity or in failing to point out in what particupon its own lands. We find that it is ulars the plaintiff was guilty of contributory not necessary to pass upon this contention. negligence, is too general to be considered It is not in issue. There is no allegation and should be overruled. 38 Cyc. 1552, and that respondent is a Carey Act company. cases therein cited. The rule announced It is fundamental that an appellate court by this court in the case of Idaho Mercanwill not consider any question not put in tile Co. v. Kalanquin, 7 Idaho, 295, 62 Pac. issue by the pleadings. This court will 925, is in harmony with the rule above statnot take judicial notice of the existence of ed, wherein this court held: any Carey Act company or corporation. C. S. § 7933. And, while we will take judicial notice of a statute giving a Carey Act construction company a right of way over Carey Act lands, there is no evidence that the land upon which this gulch is situate was such land when the system was constructed. The complaint alleges and the answer admits that the lands belong to appellant. In fact, respondent alleged that * The plaintiff has been guilty of neglect in permitting the said wasteway to continue upon his premises. * (Italics ours.) Judgment reversed. Costs to appellant. MCCARTHY, C. J., concurs. BUDGE, J. (concurring specially). At the close of appellant's testimony respondent made the following motion for nonsuit: "We move for a nonsuit of this case for the reason that the complaint herein fails to state a cause of action; for the further reason that the proof fails to establish any negligence on the part of the defendant, and there is an entire absence of sufficient or any proof to establish any liability on the part of the defendant; for the further reason that the evidence shows conclusively that the plaintiff herein is guilty of such negligence, if there is any negligence in the case whatever, he is guilty of such negligence of contributory negligence as will preclude his recovery." C. S. § 6830, specifies the grounds upon which an action may be dismissed or a judgment of nonsuit entered, and the insufficiency of the complaint to state a cause of action is not one of the grounds specified in such statute. Ludwig v. Ellis, 22 Idaho, 475, 126 Pac. 769; Strong v. Western Union Telegraph Co., 18 Idaho, 389, 407, 109 Pac. 910, 30 L. R. A. (N. S.) 409, Ann. Cas. 1912A, 55. "A motion for a nonsuit must specify particularly the point relied upon for such nonsuit, and thus call the attention of the court and opposing party to the grounds of the motion," -the court observing: "The reason of the rule is obvious. If the attention of the court and opposing party is called to the specific point relied upon, opportunity might be then and there given for the removal of the objection relied upon for the nonsuit, and the objection removed." In the case of Barlow v. Salt Lake & U. R. Co., 57 Utah, 312, 194 Pac. 665, it is held that: "A motion for a nonsuit should be specific. and a motion stating that the evidence fails to show negligence or carelessness is too general to be considered." In re Soale, 31 Cal. App. 144, 159 Pac. 1065, we find the rule stated as follows: "Motion for nonsuit, if in general terms, failing to specify any particular defect in the evidence, should be disregarded." Also, in Security Inv. Co. of San Bernardino v. Bartram, 54 Cal. App. 540, 202 Pac. 337, it is held: "A motion for a nonsuit on the ground 'that plaintiff has wholly failed to prove his case' is insufficient, as it does not call attention to the particular matters relied on." It will be observed from a reading of the motion that the statements made therein are mere conclusions, and in order for this court to determine the correctness of the conclusions so stated it would be necessary to examine the entire record to ascertain whether the same are correct, and this we are not called upon to do." The motion for nonsuit should have been overruled for the reasons herein given. LLOYD v. ANDERSON et al. (No. 3988.) (Supreme Court of Idaho. June 2, 1924.) 1. Appeal and error 1066, 1067-Charge on question not at issue, together with failure to instruct on material issues supported by substantial evidence, held reversible error. their certain promissory note in the sum of $1,700. Under date of August 10, 1920, the Andersons delivered to respondent their check in the sum of $1,934, which included payment of the note. This check was not paid at the bank because of lack of funds, and on October 5, 1920, Parley Anderson, one of the parties to the contract, together with other persons, delivered to respondent his note in the sum of $1,973, and respondent de The giving of an instruction upon a question not made an issue by the pleadings, and concerning which there is no substantial evidence, together with the failure to give an in-livered to appellant the following memoranstruction upon material issues in support of which substantial evidence is admitted, constitutes reversible error. 2. Vendor and purchaser 105(1)—Vendor in executory land contract, retaking possession for breach, cannot thereafter recover on note for deferred payment in absence of agreement. dum: "Oct. 5,-20. "Re'd of J. P. Anderson and Sons note for $1,973 in return or renewal of note signed by Anderson Bros. in June for $1,900. "C. E. Lloyd and J. A. Smoot." On December 21, 1920, respondent comA vendor in an executory contract for the menced his action to recover from appellants sale of land, who retakes possession of the on the note given in October. Appellants, in property because of a breach of the contract their answer, admitted the execution and defor a failure to make the payments therein livery of the note, but, as an affirmative deprovided for, cannot thereafter recover on a fense, they pleaded the contract for the sale note given for a deferred payment, in the ab- of the land, and alleged that the note sued 'sence of evidence that he repossessed the prop-on was delivered to respondent in conformity erty in pursuance of an agreement that the note would be paid. with the provisions of the contract that appellants would execute and deliver their Appeal from District Court, Bannock Coun- promissory notes for any or all deferred payty; O. R. Baum, Judge. Action by C. E. Lloyd against Parley Anderson and others. From a judgment for plaintiff, defendants appeal. Reversed. Peterson & Coffin, of Pocatello, and C. H. Darling, of Boise, for appellants. Budge & Merrill, of Pocatello, for respond ent. WM. E. LEE, J. On April 17, 1920, respondent and Parley and Ricy Anderson entered into a contract in writing, in which respondent agreed to sell, and the Andersons agreed to purchase, certain real property in Grace for $27,000. The payment of $500 was admitted by the contract, which provided for a payment of $1,500 on May 1, 1920, $200 on the first day of each month thereafter, $1,000 on November 15, 1920, and $1,000 on November 15th of each year thereafter, until the entire purchase price was paid. It was further provided that in case the Andersons failed to comply with the terms of the contract, respondent could "take possession of the said property and hold all payments made by second parties as rental and liquidated damages," or "declare the entire sum due and payable and proceed to collect the entire remaining payments." The contract con tained also the following: Second parties, at any time that they are requested by first parties, will execute and deliver to first parties their promissory notes for any or all deferred payments." In June, 1920, Parley and Ricy Anderson, at the request of respondent, delivered to him ments upon the request of respondent. They [1] The court refused to give certain instructions requested by appellants, and gave an instruction to the effect that the jury should return a verdict for respondent, irrespective of what the note was taken for, if the property was taken back by respondent in pursuance of an agreement between the parties that the nofe would be paid. The refusal to give the requested instructions and the giving of the foregoing instruction are assigned as error. Appellants make a number of objections to the instruction referred to. They say that any agreement to pay the note at the time the property was taken back would be nudum pactum and could not be enforced, that the instruction was further erroneous for the reason that there was no allegation of any agreement at the time the premises were taken back that the note would be paid, and that there was no evidence of such an agreement. Appellants do not cite any authorities in support of, nor do they argue, the first two of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ,(227 P.) their objections. The complaint did not allege any such agreement, and, if there is no evidence of the agreement, it was error for the court to give the instruction in question. Smith v. Graham, 30 Idaho, 132, 164 Pac. 354; Gwin v. Gwin, 5 Idaho, 271, 48 Pac. 295; Johnson v. Fraser, 2 Idaho (Hasb.) 404, 18 Pac. 48; Henry v. Jones, 1 Idaho, 48. See, also, 14 R. C. L. 784, § 50. Respondent had introduced his note in evidence. Appellants had produced evidence to the effect that the note in question was given as a renewal of another note that had been given at the request of respondent for deferred payments, and that respondent had repossessed the premises. In his rebuttal, respondent testified as to what took place at the time he took possession of the premises, and it is argued by his counsel that this evidence shows an agreement that respondent would repossess the premises and that appellants would pay the note in question. Appellants contend that there is no evidence of any such agreement. If there was no substantial evidence of such an agreement, the court was not justified in instructing the jury upon the question of the effect of such an agreement. The only evidence that we have been referred to by respondent, and that we have been able to find from a careful examination of the transcript, which in any manner bears on the question, is the following testimony of respondent, given in answer to a question on direct examination: From the foregoing, it would appear that respondent made an offer to appellants that he would take back the property and release appellants from all other obligation if they would agree, to pay the note, but we are unable to glean from the testimony any statement that the offer was accepted. No evidence having been adduced that the property was taken back by respondent in pursuance of any agreement that appellants would pay the note, the trial court was in error in giving the instruction complained of. [2] In view of the defense to the action and the evidence on behalf of appellants, having instructed the jury to the effect that, upon the failure to make any of the payments provided for in the contract, there were two remedies open to respondent, either of which he could pursue-first, he could declare the unpaid installments immediately due and proceed to collect them; or, second, he could repossess the property and retain all payments theretofore made the trial court should have submitted to the jury, by proper instructions, the questions of whether the note, which was the basis of the action, was given, at respondent's request, for a deferred installment, and whether respondent exercised the remedy of repossessing himself of the property under the provisions of the contract. "The old gentleman. He learned that I was If the note was given for a deferred installin town and came up from Gentile Valley to ment of the purchase price of the property, see me. I said, "The boys are not keeping up and respondent repossessed himself of the their contract, and we must, if this garage is property because of a breach of the contract occupied by you folks, insist that the payments to make the payments provided therein, he is are kept up.' We talked matters over, and I said, "There is only one thing for you folks to not entitled to recover (Croup v. Humboldt do as I view it, and that is to pay up this note, Quartz & Placer Mining Co., 87 Wash. 248, and I will assist you all I can by only charging 151 Pac. 493; Ward v. Warren, 44 Or, 102, 74 you from the time that you took that building Pac. 482; Waite v. Stanley, 88 Vt. 407, 92 until you delivered it, the interest on the mon- Atl. 633, L. R. A. 1916C, 886, and note; Seey on the $27,000, taxes and insurance,' and curity State Bank v. Krach, 36 N. D. 115, I said, 'If there is any difference I will give 161 N. W. 568; Roney v. Halvorsen Co., 29 you credit for it, but pay up your note and IN. D. 13, 149 N. W. 688; Steiner v. Baker, will give you credit for any difference, and I will take the building back. That was on the condition that they make this settlement." On cross-examination, respondent testified as follows: "After they could not pay their payments, and I could see that they couldn't, and I says, "There is only one thing for you folks to do, and that is to pay this note, or we will have 227 P.-3 111 Ala. 374, 19 South. 976; Mays v. Sanders [Tex. Civ. App.] 36 S. W. 108), in the absence of evidence of any agreement to pay the note in pursuance of which the property was taken back. Judgment reversed; costs to appellants. MCCARTHY, C. J., and WILLIAM A. LEE, J., concur. Where a cause on the calendar is reached for hearing, and neither side has submitted a brief or is represented by counsel, under rule 48 this court may, in its discretion, either dismiss the appeal, which results in an affirmance of the judgment below, or examine the record for fundamental error and render its judgment on the merits. 2. Record supporting judgment. Record examined and held sufficient to support the judgment. Appeal from District Court, Gem County; Ed. L. Bryan, Judge. G. W. Bariger was convicted of unlawful possession of intoxicating liquor, and he appeals. Affirmed. ing such property furnished to his vendor and properly certified to by a bonded abstracter, and where such abstract, through the negligence of the abstracter, fails to include a mortgage dee is thereafter compelled to satisfy such upon the property so purchased and the venmortgage by payment thereof, the vendee has a right to maintain an action to recover such damages thus sustained, and this right is not limited to an action upon the bond required to be given under the provisions of C. S. § 2262. 2. Abstracts of title 3-Relief on abstrac ter's bond extends to all persons who suffer damage by reason of error, omission, or deficiency of abstract. The relief afforded by the provisions of C. S. § 2262, on account of error, omission, or deficiency in an abstract of title, extends not only to the person ordering and paying for the abstract, but to all persons relying upon such abstract who suffer damage by reason of such error, omission, or deficiency. 3. Trial 163-Motion for nonsuit stating that person wholly fails to show liability of defendant too general for consideration. A motion for nonsuit should be specific, and R. B. Ayers, of Emmett, for appellant. a motion stating that the proof wholly fails to A. H. Conner, Atty. Gen., and James L. show any liability on the part of the defendant Boone, Asst. Atty. Gen., for the State. BUDGE, J. An information was filed against appellant in which he was charged with the crime of unlawful possession of intoxicating liquor. To this information appellant entered a plea of "not guilty." He was subsequently placed on trial and by the verdict of the jury was found guilty, as charged. Thereafter judgment of conviction was duly entered and sentence pronounc ed. From the judgment, and from an order overruling a motion for a new trial, this appeal is prosecuted. [1, 2] The transcript on appeal was filed in this court on the 8th day of February, 1924. Appellant has filed no brief. When the cause was reached upon the calendar, and set down for hearing, appellant was not present nor represented by counsel. Upon this state of the record, and in accordance with rule 48 of this court, the record has been examined for fundamental error. No fundamental error appearing, the judgment must be aflirmed; and it is so ordered. is too general to be considered. 4. Appeal and error 1170(5)-Reversal cannot be predicated on immaterial variance unless prejudicial. Reversal cannot be predicated upon an immaterial variance between the allegations of the complaint and the proof offered in support thereof, where the appellant was not prejudiced in making his defense. 5. Appeal and error 758 (3)-Particulars of insufficiency of evidence to support judgment must be pointed out in brief. Where insufficiency of the evidence to support the judgment is assigned as error and appellant fails to point out the particulars of insufficiency in his brief, such assignment of error will not be considered by this court. Wm. E. Lee, J., dissenting. Appeal from District Court, Fremont County; James G. Gwinn, Judge.. Action by R. D. Merrill and another, copartners doing business under the firm name, and style of Merrill & Isenberg, against the Fremont Abstract Company. From a judgment for plaintiff, defendant appeals. Af MCCARTHY, C. J., and WILLIAM A. LEE firmed. and WM. E. LEE, JJ., concur. Peterson & Coffin and E. G. Frawley, all of Pocatello, for appellant. C. Redmon Moon, of St. Anthony, and MERRILL et al. v. FREMONT ABSTRACT Thos. B. Hargis, of Ashton, for respondents. CO. (No. 4008.) BUDGE, J. This action was brought by re(Supreme Court of Idaho. May 29, 1924.) spondents to recover damages from appel1. Abstracts of title 3-Right of action lant on account of its alleged negligence in against abstracter for failure to show mort- the preparation of an abstract of title to cergage not limited to action on statutory bond. tain real property whereby an instrument A party purchasing real property has a was omitted from the same. The amended right to rely upon an abstract of title cover-complaint, which is unverified, alleges that For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (227 P.) on October 29, 1917, appellant made, compil- is contractual and therefore binding only on ed, and delivered to one J. F. Burnham, at the parties to the contract, that there was no his request, an abstract of title covering cer- privity of contract between respondents and tain property in Fremont county, certified to appellant, neither can the action be converted date, and through mistake and fraud omitted into an action in tort, since the duty to make therefrom a mortgage upon such property the abstract correctly was created solely by given by J. F. Burnham and wife to the Con- contract and its breach is therefore merely a solidated Wagon & Machine Company, which breach of contract. The general rule would on August 30, 1920, amounted to $495.15, and seem to be that the liability of an abstracter which was duly recorded in Fremont county in the absence of statute depends upon the on. April 19, 1915. On March 4, 1918, respond- privity of contract, so that the abstracter furents purchased the property covered by the nishing an abstract to one person is not held said abstract, relying thereon. Subsequently, liable to another, using the same, for omis by warranty deed they conveyed the proper- sions or negligence, where the abstracter had ty to one H. E. Bowman. Thereafter and no notice or knowledge that the abstract was under the terms of the warranty deed to for anyone other than the person ordering it. Bowman, respondents were compelled to and Unless, therefore, there is a statutory liabildid pay and satisfy the said mortgage. De-ity and the rule of the common law has mand was thereupon made upon appellant been abrogated respondents were without a for reimbursement, which was refused. remedy against appellant. The precise quesWhereupon this action was brought to recov- tion presented by the demurrer has never er from appellant the amount expended in been before this court, so far as we are insatisfaction of the mortgage. A general and formed or have been able to ascertain from special demurrer was filed to the amended such investigation as we have been able to complaint, but the record fails to disclose the make. action taken by the court thereon. To the amended complaint appellant answered denying each and every allegation contained therein. Upon the issues thus framed the cause was tried to the court sitting without a jury. No findings of fact or conclusions of law appear in the record, and it will be presumed that the same were waived. Judgment was rendered in favor of respondents in the sum of $544.21 with interest and costs, from which judgment this appeal is taken. Appellant specifies as error the action of the court in overruling its demurrer to the amended complaint. The record is silent as to the action of the court upon the demurrer. In the case of Glavin v. Salmon River Canal Co., Ltd., 226 Pac. 739, this court held: "Where the record is silent as to the action of the court upon a demurrer, the demurrer will be deemed to have been waived." To the same effect, see Diamond Coal Co. v. Cook, 61 Pac. 578;1 Burns v. Stolze, 111 Wash. 392; 191 Pac. 642. C. S. § 2262, provides that "It shall be a misdemeanor for any person or persons to engage in the business of compiling abstracts of title to real estate, in the state of Idaho, and demand and receive pay for the same, without first filing in the office of the probate judge of the county in which such business is conducted a bond to the state of Idaho, in the penal sum of $10,000, with not less than three sureties, residents of the county, conditioned for the payment by such abstracters of any or all damages that may accrue to any party or parties, by reason of any error, deficiency or mistake in any abstract or certificate of title, made and issued by such person or persons." [1] Under the authorities the rule would seem to be that under statutes requiring abstracters to give bond for payment of any damages to any party through error made by the abstracter, the latter is liable to a purchaser of the premises, the abstract of title to which is prepared by the abstracter and such abstract certified to as including all conIt therefore follows that thiş assignment veyances, liens, incumbrances, and judgments of error is not properly here for considera- covering the property which are of record in tion; but since both parties, in their briefs, the county where the land is situated, withhave treated the demurrer as though over- out regard to who paid for the abstract or ruled, we have concluded to dispose of the ordered it, but who suffered injury by reaquestion of the sufficiency of the complaint. son of the omissions, errors, or mistakes made It is the contention of appellant that the com- by the abstracter therein. It is well settled plaint fails to state a cause of action, in that that an abstracter is liable for damages reit affirmatively appears therefrom that the sulting from errors or defects in an abstract abstract of title was furnished at the re- furnished by him, which are attributable to quest of Burnham, the original owner of the a lack of proper care or skill in the performproperty, and that the abstracter's liability, ance of his duties but he is not liable as a if any, for damages arising from his negli- guarantor or insurer. 1 Corpus Juris, p. 368, gence or want of due care in making, com- § 11. It will be noticed from the provisions piling, and certifying to the abstract of title, of C. S. § 2262, supra, that any abstracter who demands and receives pay for an ab. 1 Reported in full in the Pacific Reporter; reported as a memorandum decision without opin-stract shall file a bond in the sum of $10,000 ion in 129 Cal, xviii. with not less than three sureties conditioned |